An employee's verbal complaint can trigger the anti-retaliation prohibitions of the federal Fair Labor Standards Act ("Act") according to the United States Supreme Court in the recent case of Kasten v. Saint-Gobain Performance Plastics, Corp. (131 S. Ct. 1325(2011)). While Kevin Kasten was an employee of Saint-Gobain Performance Plastics Corp., he made a number of verbal complaints to co-workers and to his supervisors contending that the company's time clocks were located in such a position that workers were not getting paid for time spent donning and doffing work-related protective gear. After Mr. Kasten was fired for repeatedly failing to accurately record his time, he sued the company alleging that his termination was in retaliation for his having complained about the time clocks.

The trial court found that the Act's anti-retaliation provision, 29 U.S.C. §215(a)(3) (employers may not "discharge . . . any employee because such employee has filed any complaint") did not extend to oral complaints. The Seventh Circuit Court of Appeals affirmed, but the U.S. Supreme Court reversed holding that oral complaints do come within the Act's prohibition on retaliation.

The Court recognized that an employer must have "fair notice" that an employee is making a claim that could subject the employer to a later claim of retaliation, but found that an oral complaint could give such notice. The Court noted that limiting the Act's protection to written complaints would "undermine the Act's basic objectives" of prohibiting "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers."

In light of the Supreme Court's decision in Kasten, employers should have a strong anti-retaliation policy and be aware that adverse employment action taken towards an employee who has orally complained about wage and hour conditions may give rise to a claim of retaliation. Employers should ensure that managers are trained to identify and report anything that might be considered a complaint and consider documenting oral complaints. Finally, employers should exercise extreme caution when contemplating adverse action against an employee who recently has engaged in protected activity.

Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.